Pattison v. State of Nevada in re NDOC

• Court: District Court, D. Nevada
• Decided: August 26, 2019
• Docket: 3:19-cv-00425
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * DANTE PATTISON, Case No. 3:19-cv-00425-MMD-WGC 4

Plaintiff, ORDER ACCEPTING AND ADOPTING 5 v. REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE 6 THE STATE OF NEVADA, et al., WILLIAM G. COBB

7 Defendants. 8 9 Before the Court is the Report and Recommendation of United States Magistrate 10 Judge William G. Cobb (ECF No. 4) (“R&R”) relating to Plaintiff’s application to proceed 11 in forma pauperis (“IFP Application”) (ECF No. 1) and motion requesting an order to 12 receive a tape recorder (ECF No. 3). Plaintiff filed objections on August 7, 2019. (ECF 13 No. 6.) Additionally before the Court is Plaintiff’s motion requesting several subpoenas 14 duces tecum. (ECF No. 5.) The Court overrules Plaintiff’s objections and accepts the 15 R&R for the following reasons. The Court also denies Plaintiff’s motion requesting 16 subpoenas duces tecum. 17 This Court “may accept, reject, or modify, in whole or in part, the findings or 18 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 19 timely objects to a magistrate judge’s report and recommendation, then the court is 20 required to “make a de novo determination of those portions of the [report and 21 recommendation] to which objection is made.” Id. Where a party fails to object, however, 22 the court is not required to conduct “any review at all . . . of any issue that is not the 23 subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth 24 Circuit has recognized that a district court is not required to review a magistrate judge’s 25 report and recommendation where no objections have been filed. See United States v. 26 Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review 27 employed by the district court when reviewing a report and recommendation to which no 28 objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. 1 Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that 2 district courts are not required to review “any issue that is not the subject of an 3 objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then 4 the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. 5 Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to 6 which no objection was filed). In light of Plaintiff’s objections, the Court will conduct a de 7 novo review. 8 Plaintiff brings his action because he wants to perpetuate certain evidence— 9 depositions, interrogatories, and requests for production of documents—in anticipation of 10 a future action. (See ECF No. 1-1 at 1-3.) The Magistrate Judge recommended denying 11 Plaintiff’s IFP Application and dismissing this case because Plaintiff failed to comply with 12 Federal Rule of Civil Procedure 27 governing depositions to perpetuate testimony. (ECF 13 No. 4 at 2-3.) Rule 27 allows a person who wants to perpetuate testimony to file a 14 verified petition that requests an order authorizing a deposition to perpetuate testimony. 15 The petition must show the following: 16 (A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought; 17 (B) the subject matter of the expected action and the petitioner's interest; (C) the facts that the petitioner wants to establish by the proposed 18 testimony and the reasons to perpetuate it; (D) the names or a description of the persons whom the petitioner expects 19 to be adverse parties and their addresses, so far as known; and (E) the name, address, and expected substance of the testimony of each 20 deponent.

21 Fed. R. Civ. P. 27(1). The Magistrate Judge found that Plaintiff “provide[d] no factual 22 basis of the action he intends to bring in the future, and he fails to state the facts he 23 wants to establish, what testimony is expected, or why testimony must be perpetuated 24 now.” (ECF No. 4 at 2.) The Magistrate Judge thus concluded Plaintiff “has not satisfied 25 the requirements of Rule 27.” (Id.) The Magistrate Judge also noted that Rule 27 does 26 not apply to requests for production of documents or interrogatories. (Id. at 3.) 27 Plaintiff objects, first arguing that the Court must construe his filing liberally. (ECF 28 No. 6 at 1.) Even construing Plaintiff’s filings liberally, however, Plaintiff has not complied 1 with Rule 27. (See ECF No. 1-1 at 1-3 (failing, for example, to identify the facts petitioner 2 wishes to establish).) 3 Plaintiff next argues that the Magistrate Judge incorrectly determined that Rule 27 4 did not apply to requests for production of documents or interrogatories. (ECF No. 6 at 1- 5 2.) While Rule 27 allows deposition testimony to be “taken orally or by written 6 interrogatories,” Fed. R. Civ. P. 27(a)(3), Rule 27 does not encompass requests for 7 production of documents, and Plaintiff has not complied with the requirements of Rule 27 8 besides. 9 Finally, Plaintiff attempts to make the required showings under Rule 27 in his 10 objection. (See ECF No. 6 at 3-4.) However, Plaintiff still has not identified facts that he 11 wishes to establish. Among the facts that Plaintiff states he intends to establish are that 12 certain individuals “[r]etaliated against me for protected whistleblower activity they have 13 conscious knowledge of,” and that they “used undue influence to abuse the 14 Classification Process to falsely arrest and hold me in 8B.” (ECF No. 6 at 3.) These are 15 not facts—they are conclusory allegations. Plaintiff has failed to identify the underlying 16 factual basis for these conclusions that he wishes to identify through deposition. Plaintiff 17 also asserts that surveillance video camera footage will be destroyed, but as the 18 Magistrate Judge noted, Rule 27 is not a vehicle for requesting production of documents. 19 Accordingly, the Court will overrule Plaintiff’s objections and adopt the R&R. The 20 Court additionally will deny Plaintiff’s motions (ECF Nos. 3, 5) requesting subpoenas 21 duces tecum and an order to receive tape recorder because Rule 27 does not apply to 22 these requests. Plus, Plaintiff has not satisfied the requirements of Rule 27 to obtain any 23 relief under that rule. 24 It is therefore ordered, adjudged and decreed that the Report and 25 Recommendation of Magistrate Judge William G. Cobb (ECF No. 4) is accepted and 26 adopted in its entirety. 27 It is ordered that Plaintiff’s application to proceed in forma pauperis (ECF No. 1) 28 without having to prepay the full filing fee is denied. 1 It is further ordered that Plaintiff's pending motions (ECF Nos. 3, 5) are denied. 2 lt is further ordered that this action is dismissed and that the Clerk of the Court 3 || close this case. 4 DATED THIS 26" day of August 2019. . ASQ MIRANDA M. DU 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28